LAS VEGAS – Last year’s Construction Super Conference panel discussion on Ethical Considerations In Construction Contract Negotiations was exactly as promised. It led to spirited debates with some of the industry’s top construction attorneys and owners, who offered vastly different opinions about the issue of ethics in construction.
There is undoubtedly a need for ethics in handling contract negotiation, estimating, claim notification, and claim substantiation; but the speakers brought to light the difficulties that lawyers face in zealously representing construction clients who demand aggressive negotiation of contracts. Aggressive negotiations can lead to significant imbalances between parties—or the presentation of claims that may be without proper justification or support.
It was refreshing to hear honest discussions by attorneys and experts about how they manage the internal and external conflicts that arise when considering the legal and non-legal ethical and moral implications of aggressively negotiating contracts, or the issues that come up when presenting untenable claims or defenses.
The panel (see panelists below) did an excellent job of challenging the audience to consider the practicalities of handling construction matters ethically under certain circumstances, particularly when considering state ethics rules, case law, and federal acts which prohibit lawyers from disclosing certain information and material facts about clients and place other legal restrictions on lawyers when negotiating or litigating on behalf of clients.
Having this type of program in person, rather than virtually, was particularly important given the controversial nature of this topic and how passionate people can be on either side of the argument. Attendees were able to debate the issue first-hand the issue, and to respectfully and candidly exchange experiences about the difficulties attorneys may face when called upon to exercise their independent professional judgment.
Attendees were able to provide advice about construction matters, which can include advising clients on complex financial and economic matters, as well as moral and social factors that may be relevant to the client’s decision making, all while balancing the need to remain ethical in all respects of the practice of law. Such exchanges become more challenging when done in the context of a virtual class or program. I look forward to a follow-up program that focuses on these highly charged issues of ethics in construction.
Heather F. Shore (pictured) is a Member at Baker Sterchi Cowden & Rice LLC, Kansas City, Missouri. Shore was a presenter and attendee at CSC 2024 at the Mandalay Bay Convention Center in Las Vegas.
